Two notable limitations exist on the use of personhood arguments in establishing moral status. Firstly, although the attribution of personhood may give us sufficient reason to grant something moral status, it is not a necessary condition. Secondly, even if a person is that which has the ‘highest’ moral status, this does not mean that any interests of a person are justifiable grounds to kill something that has a ‘lower’ moral status. Additional justification is needed to overcome a basic wrongness associated with killing something possessing moral status. There are clear arguments already available in this regard in the case of a foetus that are not available in the case of a newborn infant. Hence, there is scope to consistently hold that abortion may be permissible but that after-birth abortion may not be permissible.
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The arguments of Giubilini and Minerva1 are not newi but they nevertheless pose a problem of consistency for those who support abortion. This problem is that if one accepts that fetuses, as merely potential persons, have no right to life then the same argument can also be extended to newborn infants, who are also merely potential persons. One way to consistently resist all of these conclusions is by arguing that merely potential persons do have a right to life and that this potentiality starts from the moment of conception; although, such an argument is most likely to be offered by those who oppose all forms of abortion. It is less obvious what might be done to consistently hold a ‘middle ground’ position, by which I mean the view that abortion may be ethically permissible but that ‘after-birth abortion’ may not be ethically permissible?ii In this paper, I will argue that it is possible to resist the conclusions of Giubilini and Minerva about the permissibility of after-birth abortion while still consistently holding both that abortion may be morally permissible and that personhood is an important (but not sole) consideration as to something's moral status. In doing so, I will not establish that infanticide is absolutely impermissible, only that the arguments of Giubilini and Minerva do not establish its permissibility.
The basis of my argument is that the ethical conclusions we can draw about moral status from personhood considerations are overstated by Giubilini and Minerva. Although persons may be those things who have the ‘highest’ moral status that ensures some prima facie right to life,iii personhood is not a necessary condition for something to have some moral status. Having some moral status may not be equivalent to having this ‘highest’ moral status and so would not automatically confer a prima facie right to life. However, it would mean that destroying or killing a non-person with some moral status was not morally insignificant.iv The lack of attribution of personhood to fetuses or newborns does not mean that they do not have some weak time-relative interests (TRIs) that serve as a foundation for their moral status.v Such interests would convey that although it is not as wrong to kill them as a person some substantial justification is still needed to treat their killing as morally unobjectionable. In the case of abortion, a very strong justification is offered in terms of the rights a woman has over her own body.4 In the case of after-birth abortion, this justification is lost. So even if the fetus and the newborn have the same moral status as only potential persons with similar TRIs, the justifications one can offer for killing a fetus may be very different from those one could offer to justify killing a newborn.
This means the focus for the permissibility of after-birth abortion could not founded solely on the issue of personhood or potential personhood—that only tells us whether there is a prima facie right to life—but on what might constitute a justification for killing a non-person that has some moral status. Establishing what might, if anything, constitute such a justification is an immense task and one I do not intend to answer here. What is important is that it gives sufficient grounds to reject the arguments of Giubilini and Minerva that consistency demands that if one accepts the permissibility of abortion then one must accept the permissibility of after-birth abortion on the same grounds.
Personhood and moral status
The concept of personhood is widely used as a means of determining the moral status of individuals.vi While ‘person’ is generally taken to designate something that has the ‘highest’ moral status, quite what constitutes a person and what attribution—or lack—of this highest moral status amounts to are more contentious. Confusions arise when an overriding reliance on appeal to whether or not something is a person (a metaphysical question about identity) clouds the more practical issue of what that personhood status entails (an ethical question about moral status). Crucially, questions about moral status are not exhausted by appeal to claims about personhood given that the range of things which are generally ascribed moral status in the world far outstrips the range of things that are ascribed personhood. This also leads to a connected problem when using appeal to personhood arguments as to whether the interests of those things—persons—that are deemed to have this highest moral status can, simply in virtue of possessing this status, override all other considerations for non-persons that have a lower moral status. These two factors pose a particularly acute problem for the conclusions of Giubilini and Minerva.
Giubilini and Minerva draw on what they take to be a consistent application of arguments used to justify abortion in order to establish that the same holds in the case of ‘after-birth abortion’, so that ‘killing a newborn could be ethically permissible in all the circumstances where abortion would be’ (p. 2).1 At its most basic, their claim is that the moral status of a newborn infant is equivalent to that of a fetus, in that neither can be considered a person, and that one cannot harm the newborn by preventing it from becoming a person.
It is important to be clear that this argument is not about whether abortion or after-birth abortion is in the best interests of the fetus or neonate that is killed. The argument presented is that the death of a newborn is not wrongful in the same way and for the same reasons that abortion is not wrongful: there is no person who is prevented from accomplishing her future aims. This means that the argument of Giubilini and Minerva offer draws its strength from claims about the nature and status of persons.
Basing any argument on claims about the nature and status of persons will be open to significant disagreement from the outset. There are a wide range of views as to what constitutes our metaphysical identity from which personhood or high moral status is purportedly derived. The most notable of these are biological criteria of identity, whereby emphasis is placed on our being essentially biological creatures of a certain species type,vii and psychological criteria of identity,viii whereby emphasis is placed on our being essentially psychological creatures or ‘persons’.ix There has even been a strong case forwarded that personal identity arguments are not significant at all in arguments about the moral permissibility of abortion.x Such widespread dispute itself might cast doubt on whether significant emphasis should be placed on one of these accounts as the basic rationale to justify ending the existence of something, as Giubilini and Minerva have done with their application of the psychological account of personhood. However, their choice of a particular metaphysical account of personhood need not, in one sense, concern us. One need not become directly embroiled in the metaphysical question of which account of personal identity might be the ‘correct’ one in order to consider what the ethical implications of such an account are. Instead, the ethical debate can carry on at a conditional level, namely: if the psychological account of personal identity is a satisfactory account, then what ethical conclusions can we draw from it? Therefore, rather than contesting the conclusion of Giubilini and Minerva on the grounds that they are relying on a contestable account of personal identity (given their conclusion might not be arrived at were we to adopt, for example, a biological account of personhood), I shall instead argue that, even given the psychological account of personal identity they forward, they are unable to justify their conclusion by appealing to it.
In brief, the argument of Giubilini and Minerva is that killing a newborn could be ethically permissible in all the circumstances where abortion would be, given that:
The moral status of an infant is equivalent to that of a fetus, that is, neither can be considered a ‘person’ in a morally relevant sense.
It is not possible to damage a newborn by preventing her from developing the potentiality to become a person in the morally relevant sense (p. 2).1
In one sense, the sense of moral status qua being a person, there is nothing wrong with these claims. However, the inference that Giubilini and Minerva draw from these two claims is one that relies on the term ‘moral status’ as something like ‘absolute moral status’. That is, they assume that ‘personhood’ tells us everything we need to know about the moral status of some individual when it comes to the permissibility of killing them. This is not to say that Giubilini and Minerva have ignored that non-persons can have moral status or value in virtue of what a person might ‘project’ onto them, or that the capacity to experience pleasure and pain entitles one to have a right not to be inflicted pain (a capacity they recognise can be attributed to fetuses and newborns), or that the fetus and newborn have a different moral status as ‘potential persons’. It is rather that they have not considered all the ways in which something has moral status in its own right that derives from something other than personhood, albeit conveying a moral status below that of persons.
In order for their argument to hold, Giubilini and Minerva have to assume the permissibility of abortion of fetuses and the equivalence in moral status of fetuses and newborns, so that, wherever there are reasons justifying the permissibility of abortion the same reasons must be acceptable for after-birth abortion of the newborn. This equivalence of moral status between fetus and newborn is derived from their lacking the sufficiently developed psychological attributes that constitute ‘persons’. The important elements behind this are twofold: first, that only persons have a ‘moral right to life’ and, second, that it is impossible to harm someone by preventing them from becoming an actual person. The fact that a fetus or a newborn infant may possess the basic attributes that will lead them to develop the psychological capacities that are necessary to be a person only gives them the status of ‘potential person’. By killing a potential person, so the argument goes, no actual person is harmed, nor has any harm been done simply by preventing the development of something into a future person as there were no future projects, values and so on that are curtailed by the killing of a non-person.
What is at stake is that, even given this view of harms and personhood, the conclusion they draw is based on an incomplete picture. Certainly, those things that are persons might be deemed to have a right to life and it is without doubt one of the most important signifiers of such a right. The trouble is, it is neither obviously necessary nor even, arguably, sufficient in itself to generate this right. At most, the account of personhood of Giubilini and Minerva would have it as a sufficient condition for a prima facie right to life, such that if something is a person, then it has a right to life.xi
Moral status and the permissibility of killing
That something is a sufficient but not a necessary condition for moral status allows scope for other properties that might themselves also signify possession of moral status. There is, however, no need to attempt to discover some other property that would convey such an absolute right to life. At the very least, even were personhood necessary for full moral status—and its concomitant right to life—this would not mean that personhood was necessary for something to have some moral status even if it was not constitutive of this highest, full moral status.xii A range of considerations come in to play for those things that are not persons—be they artefacts, such as works of art; aspects of nature, such as trees and rivers; animals; and potential persons such as fetuses and newborns. These considerations might be individually sufficient properties for something to be preserved from destruction or they might be sufficient in conjunction with some other consideration (such as ‘sufficient unless they pose a threat to the continued existence of a person’). Of these things, we may leave to one side cases where persons project value on to the object, such as in the case of artwork or things of natural beauty, or cases where their value is derived from an instrumental value to persons, such as artefacts. In such cases, moral value is only contingently bestowed upon the objects in question. The focus needs to be on how certain kinds of non-person (notably fetuses and neonates) have some inherent value that conveys moral status in a way that would establish a presumption against killing them. Of course, this presumption would still be weaker than that of persons but nevertheless be central to their possession of some moral status and our treatment of them.
One of the more compelling approaches to determining moral status at a level below that of personhood is by reference to TRIs. TRIs are, put simply, the interests something has in continuing to live. These, according to McMahan,xiii are determined by a combination of both the amount of potential good one's future might contain together with the strength of psychological relations that hold between one's current and one's future situation. Although there are plenty of potential future goods of a life available to a fetus or a newborn, their TRIs are weak because they lack the current psychological ties between themselves now and themselves in the future. These interests will quickly increase as psychological development increases after birth but there is little difference between the TRIs of a late-stage fetus and those of a recently newborn infant (although a greater difference among those of an early-stage, pre-sentient fetus and a newborn). However, the crucial point is that these interests are still present, even if weak when compared with those of a psychologically developed individual. The wrongness of killing a non-person therefore lies in the harm involved in frustrating these interests.
Another element of overstatement in the argument of Giubilini and Minerva comes into play at this point. Their claim that ‘the interests of actual people always over-ride the interest of merely potential people to become actual ones’ (p. 3) hides the important distinction between claims about the role of personhood and claims about moral status. While it may be true that there is no person to harm when a fetus or newborn is prevented from developing into a person, this is not equivalent to the claim that any interest of an actual person take priority over the killing of a non-person with some moral status. To think so would be to presume that the greater weight attached to the interests of actual persons over non-persons means that non-persons are, by comparison, morally irrelevant and have no interests in continuing to live.
Appeal to just any interests of a person does not seem to satisfy the need to provide adequate justification for ending the life of something with some moral status. In the case of abortion, there are remarkably powerful justifications that can be forwarded to justify killing a fetus. Foremost among these are arguments concerning the rights a woman has over her own body, such as those famously forwarded by JJ Thomson.4 The right of self-determination over one's body is, in many ways, a far more important aspect of the debate over the moral permissibility of abortion than that of personhood itself, given Thomson's arguments—that one cannot generate a right to life derived from using another's body as a host nor any corresponding duty upon the host to preserve life through the continued connection to that body—would seem to extend to persons (the violinist in her famous thought experiments) as well as non-persons. Even though one may grant that the fetus and the newborn have the same moral status in virtue of their TRIs, such an absolutely fundamental aspect of the justification of abortion—the right to bodily self-determination—is no longer present in the case of the neonate.
That such strong justification for abortion is not present in the case of the newborn infant does not, of course, mean that there are no possible justifications for after-birth abortion. The implication of attributing full moral status to persons but not to merely potential persons would mean that the killing of a newborn was still not as morally significant as the killing of a person. However, one does not need a newborn infant to have gained the level of respect that derives from the attribution of personhood for there to be the recognition that its weak TRIs still provide it with some moral status. What is now at question is what reasons justify persons destroying something that has moral status. In the case of abortions, even late-term abortions where there are some TRIs possessed by the fetus, the justification based on rights over a one's body would be sufficient given they would be sufficient in the more demanding case where a fetus is deemed to already be a person. What justifications might be acceptably given in the case of a newborn infant are significantly less clear. However, it would not simply be any interests of a person that would suffice. It is another, ethically important question to determine whether other, contingent interests a person might forward that could justify frustrating the TRIs of a newborn, such as the kind of future life a child may have or the physical, emotional and financial status of the parents. It is here, rather than at the level of personhood, that the debate about the permissibility of after-birth abortion would need to focus.
A psychological account of personhood will inevitably treat fetuses and newborns as non- or potential-persons. This, however, only tells us they do not have the moral status of persons. Without recognising that some innate moral status can be attributed to certain kinds of non-persons, arguments involving claims about personhood are extremely limited in establishing the permissibility of killing. Having some, albeit weaker, moral status determined by an innate interest in continuing to live means that killing either a fetus or a newborn requires additional ethical justification. What reasons might be sufficient to justify after-birth abortion are another, substantial concern but these are not established by the account of Giubilini and Minerva. As a result, it is still possible in light of their arguments to consistently hold that abortion may be permissible but that after-birth abortion may not be permissible.
Competing interests None.
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↵ii Note this is exclusively about ethical permissibility. Law and social practice already endorse this position, albeit not without certain restrictions.
↵iii I use the term ‘prima facie’ because this right has exceptions, such as self-defence, just war and euthanasia.
↵ix There is another, recent view of personal identity in terms of narrative identity. However, this account is not relevant to the abortion debate.
↵xi It is only arguably sufficient as we would have to rule out certain circumstances such as self-defence, capital punishment and voluntary euthanasia. See DeGrazia,10 7 and 290. It is for this reason that I refer to it as a prima facie right.
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